RAJANI KANTA MOHAPATRA AND AFTER HIM HIS LEGAL HEIRS, ARNAPURNA MOHAPATRA & OTHERS Vs. LAXMIKANTA MOHAPATRA

JUDGEMENT

(1.) IN this writ application, the petitioners have sought to challenge the order dated 09.12.2004 passed by the learned Civil Judge (Sr. Division), Bhubaneswar in Title Suit No. 171/624 of 2004/2001, refusing to stay further proceeding in the suit till disposal of the R.F.A No. 5 of 2004 and R.F.A. No. 23 of 2004 pending before this Court. It is alleged that the matter in issue is directly and substantially in issue in first appeals which arises out of T.S. No. 508 of 1998 passed by the learned Civil Judge (Sr. Division), Bhubaneswar. It appears from the record that T.S. No. 508 of 1998 has been filed by Smt. Sachimani Dibya and her two daughters, namely, Santilata Mohapatra and Jayanti Mohapatra for partition against the writ petitioner -Rajani Kanta Mohapatra (since dead and substituted), opposite party and others. In the said partition suit while the opposite party (plaintiff) had claimed the present suit property as his sole property and self acquired property, the petitioner (defendant) claimed the same as the joint family property of both the parties and having half share thereof. While the earlier suit for partition i.e. T.S. No. 508 of 1998 was pending adjudication, the present Suit i.e. T.S. No. 171/624 of 2004 -2001 has came to be filed by the present opposite party (as plaintiff) seeking eviction of the petitioner -Rajani Kanta Mohapatra from the suit property.

(2.) IT is contended on behalf of the present petitioners that both the suits i.e. T.S. No. 508 of 1998 and T.S. No. 171/624 of 2004 -2001 are in relation to the self same property which was the subject matter of dispute, whether the same was self acquired property of the present defendant or joint family property over which the petitioners have entitled to half share. The subject matter in issue in the present suit is directly and substantially in issue in the said earlier instituted partition suit amongst the parties including the petitioner -Rajani Kanta Mohapatra and opposite party. The suit i.e. T.S. No. 171/624 of 2004/2001 should be stayed till disposal of R.F.A. No. 5 of 2004 and R.F.A. No. 23 of 2004.

(3.) THE opposite party has further contended that whereas in T.S. No. 508 of 1998 three different parties advanced three separate claims, in the subsequent suit for eviction, two contesting parties has claimed right over one of the properties only. It was also submitted that while the opposite party had filed an application for simultaneous/analogous hearing of both the suits, the writ petitioner -Rajani Kanta Mohapatra opposed the said application and raised the plea that, the issues in both the suits were distinct and different. This contention of the petitioner -Rajani Kanta Mohapatra was accepted by the trial court and the application of the opposite party for analogous hearing of both the suits came to be rejected. Therefore, it is submitted on behalf of the opposite party that the petitioner cannot be permitted to play hot and clod at the same time, while vehemently objecting to the prayer of the opposite party for analogous hearing and the objection having been accepted by the trial court on the ground that the issues involved are distinct and separate. The present objection filed by the petitioner -Rajani Kanta Mohapatra is nothing else but an attempt to frustrate the opposite party from seeking redressal of his legal rights. The opposite party has claimed that the suit house, in the suit for eviction belongs exclusively to the opposite party and the petitioner had been granted permissive occupation of the house, but since the petitioner -Rajani Kanta Mohapatra made an adverse claim in the partition suit, the opposite party had filed the present suit for eviction. It was, therefore, asserted that the petitioners remain in unlawful possession of the house and should be directed to furnish adequate security in case the suit for eviction is stayed either temporarily or permanently. It was further stated that the suit house occupied by the petitioners consist of three bed room with necessary amenities and situated near Bindu Sarobar in the town of Bhubaneswar and the market rent would not be less than Rs. 5,000/ -per month.